Plaintiff: Glenn S. Sparr, Esq.
Defendant: Judy Davis, Esq.
this Court is Robert Gonder's (Petitioner) Application
for Post-Conviction Relief (Application). Petitioner asserts
that his conviction should be vacated because the statute
under which he was convicted in State of Rhode Island v.
Robert O. Gonder, P1-1994-1170A (the underlying criminal
case) is unconstitutional in that it fails to describe a
crime and prescribe a penalty therein.
Court's jurisdiction is pursuant to G.L. 1956 §
10-9.1-1. Having reviewed the parties' memoranda, and for
the reasons set forth below, this Court finds that
Petitioner's conviction was not unconstitutional.
Accordingly, Petitioner's Application is denied.
April 15, 1994, Petitioner was indicted on one count of
murder under G.L. 1956 § 11-23-1, which was alleged to
have occurred on March 8, 1994. On May 11, 1994, the State
provided notice to Petitioner that, in the event Petitioner
was convicted of murder, a recommendation would be made that
Petitioner be sentenced to life without parole pursuant to
§ 11-37-2 and G.L. 1956 § 12-19.2-1. On February
13, 1995, in exchange for the State's agreement to
withdraw its recommendation of life without parole,
Petitioner pled guilty to the single count of murder in the
first degree and was sentenced to life imprisonment at the
Adult Correctional Institutions (ACI).
January 24, 1996, Petitioner filed a previous Application for
Post-Conviction Relief alleging that he was denied effective
assistance of counsel. Robert Gonder v. State,
PM-1996-0356. On May 21, 2001, the trial justice denied
Petitioner's application without holding an evidentiary
hearing. Petitioner appealed to the Supreme Court and, on
December 4, 2002, the Supreme Court vacated the order denying
Petitioner's application and remanded the case to this
Court for a hearing. Gonder v. State, 935 A.2d 82,
84 (R.I. 2007). On remand, Petitioner amended his application
to include additional allegations of ineffective assistance
of counsel. Id. On December 16, 2004, the trial
justice again denied Petitioner's application.
Id. Petitioner sought review of this decision, and,
on November 16, 2007, the Supreme Court affirmed.
Id. at 91.
December 18, 2018, Petitioner filed the instant pro
se Application for Post-Conviction Relief, together with
a supporting memorandum asking this Court to vacate his
conviction for first degree murder in the underlying criminal
case, alleging that his conviction is unconstitutional.
the agreement of the Attorney General and by Order dated
February 22, 2019, this Court limited all
arguments to "the constitutionality of a
criminal statute which allegedly fails to state what
constitutes the crime alleged and/or fails to provide for a
penalty thereunder," without the State raising the
affirmative defenses of res judicata and/or
3, 2019, Petitioner's court-appointed counsel filed a
Supplemental Memorandum in Support of Petitioner's
Application for Post-Conviction Relief. The State filed an
objection and supporting memorandum thereto on May 20, 2019.
On May 24, 2019, the Court provided notice to the State and
Petitioner's court-appointed counsel that
Petitioner's request for relief would be considered by
this Court in the context of a summary disposition. The
parties thereafter acknowledged that an evidentiary hearing
was unnecessary to resolve the issues before this Court.
§ 10-9.1-1, any person who has been convicted of a crime
may file an application for post-conviction relief to
challenge the constitutionality of his or her conviction.
Sec. 10-9.1-1(a)(1). Unlike the proceedings afforded to
Petitioner for his underlying conviction, post-conviction
relief motions are civil in nature. Brown v. State,
32 A.3d 901, 908 (R.I. 2011). Accordingly, the applicant
bears "'the burden of proving, by a preponderance of
the evidence, that such [postconviction] relief is
warranted.'" Motyka v. State, 172 A.3d
1203, 1205 (R.I. 2017) (quoting Anderson v. State,
45 A.3d 594, 601 (R.I. 2012)). Additionally, because
Petitioner challenges the constitutionality of his
conviction, Petitioner has the heightened burden of
demonstrating unconstitutionality beyond a reasonable doubt.
See State v. Beck, 114 R.I. 74, 77, 329 A.2d 190,
ruling on an application for post-conviction relief, if the
court considers matters outside the pleadings, the court
should "treat the [party's] motion as though it were
a motion for summary disposition" as opposed to a motion
to dismiss. Palmigiano v. State, 120 R.I. 402, 406,
387 A.2d 1382, 1385 (1978). As will be discussed, this Court
has considered Petitioner's indictment, the State's
notice of its recommendation of life without parole pursuant
to §§ 11-23-1 and 12-19.2-1, and Petitioner's
plea form, which are outside the pleadings in the instant
civil action. Accordingly, this Court will review
Petitioner's Application in the context of a summary
disposition motion under § 10-9.1-6(c), which
"'closely resembles' a grant of summary judgment
under Rule 56 of the Superior Court Rules of Civil
Procedure." Reyes v. State, 141 A.3d 644, 652
(R.I. 2016) (quoting Palmigiano, 120 R.I. at 405,
387 A.2d at 1384).
§ 10-9.1-6(c), the court may grant summary disposition
when it finds, based on "the pleadings, depositions,
answers to interrogatories, and admissions and agreements of
fact, together with any affidavits submitted, that there is
no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." Sec.
10-9.1-6(c). The standard for granting summary disposition on
an application for post-conviction relief is the same as in
granting summary judgment under Super. R. Civ. P. 56(c)-the
"trial justice must consider the affidavits and
pleadings . . . in the light most favorable to the party
against whom the motion is made." Palmigiano,
120 R.I. at 406, 387 A.2d at 1385. The trial justice may not
resolve genuine issues of material fact or adjudge the weight
or credibility of the evidence. Reyes, 141 A.3d at
asserts that his conviction violated his due process rights
under both the Fifth and Fourteenth Amendments of the United
States Constitution and article I, section 10 of the
Island Constitution because the single statute of conviction,
§ 11-23-1, fails to state what conduct qualifies as a
crime and fails to provide a penalty. In response, the State
contends that Petitioner cannot prove that § 11-23-1 is
unconstitutional beyond a reasonable doubt because Chapter 23
of Title 11 of the Rhode Island General Laws, when read as a
whole, clearly and unambiguously provides a description of
the criminalized conduct and states a penalty.
was convicted of one count of first degree murder in
violation of § ...